Looking for Answers Down Below

Considering the risk to, as the EPA puts it, "human health and the environment," $20,000 might seem like a bargain if it determines, once and for all, how safe the soil and groundwater are at the City Park site. But either Baxter and Nash are extremely frugal or they fear additional testing might force them to make a difficult "business decision" --carry out a costly clean-up effort or kill the project.

Indeed, to what degree such dismal prospects are influencing Baxter-Nash's forthrightness on the environmental issue is a legitimate question. Until he was contacted by the Press, Greg Baxter apparently had no intention of correcting his initial misrepresentation, made in the June 1998 marketing study submitted to city planners, that the site was clean and cleared for development.

Baxter's office referred the matter to his attorney, Neil Rackleff, who laid the blame on the consultant who prepared the study, Revac Inc.

"According to Greg, Revac just made a mistake in what they concluded here," Rackleff explained. "My understanding is that there were two oil wells out there that were capped approximately 30 years ago, and in doing the Phase I and Phase II testing, they had determined there were no problems in developing the property and that everything was clean."

That statement is as misleading as the marketing study. Baxter may believe that his land is safe for development, but the state agency charged with regulating the environmental safety of oil-field operations has yet to determine if the City Park site is suitable for housing.

John Tintera, of the railroad commission's site-remediation program, says Baxter-Nash's environmental consultant, Chris Thayer, a project manager for Berg-Oliver Associates, asked the agency in April 1998 for a "closure letter" verifying that the site meets state environmental standards. Tintera says he evaluated the developers' Phase I and II studies, as well as an assessment done by the previous landowner in 1996, and told Thayer and Baxter that "a more comprehensive assessment" was needed before he would consider clearing the land for housing.

"We haven't had a response since that conversation." Tintera said.
Baxter is under no obligation to cooperate with regulators; he can simply ignore their requests, which is exactly what Baxter did when the railroad commission asked him to conduct more testing at the City Park site. Moreover, the Texas Railroad Commission has no authority to compel real estate developers to follow the same environmental rules as the actual operators of oil and gas sites.

Still, those are the rules that offer the best protection against environmental hazards, says John Tintera. Has Baxter-Nash met them? No one knows.

"We would need a risk assessment to [determine] that," Tintera said, "and the data that's been supplied to us are insufficient to compile a report."

As for why the city was assured the site was clean, Rackleff says Baxter simply missed Revac's mistaken interpretation of the environmental soundness of the land in the final marketing study. Last week, Rackleff produced a "correction" from Revac dated January 13. That only muddied the waters more.

"We consulted with Mr. Chris Thayer of Berg-Oliver Associates on January 12th regarding a Limited Phase II environmental assessment ... prepared in April 1998," wrote David Pallante, a Revac analyst. "Mr. Thayer indicated the site is environmentally clean and no further action needs to be taken."

It doesn't take a close reading to notice that, contrary to Rackleff's assertion that Revac had made a mistake, Pallante clearly does not admit making an error in the June 1998 study. The "correction" is nothing more than a carefully worded update received, verbatim, from Chris Thayer the previous day. Moreover, in the interests of complete accuracy, the correction probably should note that state and federal regulators disagree with Thayer's conclusions.

If Baxter purposely misled the city -- a possibility Revac's "correction" did little to eliminate --no one in the planning department, at least, seems awfully concerned. When told that Baxter had admitted giving the city inaccurate information, department spokesperson Becky Nevers referred back to the state tax-increment financing act.

"First, we'd have to know about [an environmental problem]," Nevers said, "and we're not required under state law."

Under the circumstances, it would be hard not to conclude that the legal particulars are beside the point. Jim Blackburn, a local environmental attorney, said it would be a "reasonable request" for city officials to ask Baxter for copies of his environmental studies. After all, even rumors that a piece of land is contaminated can significantly affect its value.

"I would have thought that the city would have been more curious as to what the developers' Phase I and Phase II studies showed, particularly if you've got a marketing study that basically identifies a problem, then just says it's been taken care of," says Blackburn, who opposed the City Park TIRZ on the belief that development alongside that stretch of the bayou is "suicidal."

"If those facts are incorrect, it would make a difference in the marketing study. And you're creating a tax-increment district based on the marketing study? I think it'd be prudent to have that information."

Blackburn says the previous property owner's consultant, Harding Lawson Associates, wouldn't have bothered with a Phase II study of the site in 1996 if there wasn't already enough information to suspect a problem. "The fact that aerial photos show storage pits going back to the '50s, that's the end of Phase I right there," Blackburn says. "In a Phase II, you take soil and water samples to try to determine what you're dealing with."